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Jennifer B. Goldstein

April 20, 2016

The recent spate of sexual abuse cases lodged against educational and youth-centered organizations, such as boarding or preparatory schools, YMCAs and the Boy Scouts of America, raises issues regarding which theory of negligence will prove most effective at trial.

A common mistake made by many plaintiffs’ attorneys is to seek to hold the parent organization vicariously liable for the act of one of its agents — for example, a school headmaster, administrator or teacher, a community organization program director or a Boy Scout Scoutmaster. The problem with relying on agency as a theory of vicarious liability, however, is that it is easily defeated in a sexual abuse case: the defendant has merely to prove that the “agent” was not acting within the scope of his or her employment or in furtherance of the organization’s business interests to avoid legal responsibility for the actions of the sexual offender.

Instead, it is a stronger legal theory to hold the institution itself directly responsible for bad decisions made by its own employees which were a substantial factor in causing the plaintiff’s injuries. If the plaintiff’s attorney can prove that the organization was in a unique position to recognize the dangers of sexual abuse inherent in its own activities — perhaps based on knowledge it may have of a history of abuse occurring in certain situations or settings (for example, when school staff members are permitted to invite students to their homes under the guise of mentoring activities; when children are allowed to undress in the presence of adults or other supervisors; when adults or other supervisors are allowed to share tents with children on overnight camp-outs), then the case can be made that the organization was under a duty of care to take steps to protect children in those situations where it was aware that abuse was likely to occur.

This is even more so when the organization itself created or increased the foreseeable risk that sexual abuse would occur by setting up situations where the opportunities for abuse were abundant. In such cases, the organization might chose to implement educational and informational programs for parents, youth participants and relevant staff or other leaders in community organizations to teach children how to recognize “grooming behavior” when it occurs; how to repel the advances of a sexual molester; and how to recognize a sexual molester as such. It might also teach children to know that it is safe and socially acceptable to report instances of abuse or suspected abuse and to know specifically to whom they should make such reports.

Educating children how to recognize the scourge of sexual abuse and how to respond quickly and safely in a manner that will not subject them to social ostracism will go a long way both to stopping abuse before it happens (or continues) and to protecting an organization from legal liability if it does occur. If an organization fails to take such steps, it leaves itself open to the risk of direct legal liability for its decision not to do so.